Juristic argumentation must in normal cases lead to a positive conclusion. The adoption of the rules of the burden of argumentation is, therefore, necessary. It is the task of the normative theory of juristic argumentation to formulate and to justify these rules., The rules of the burden of argumentation are constitutive rules. They do not impose duties or obligations to justify, but they state under what conditions a thesis counts as justified. The basic problem lies in the second‐order justification, that (...) is, in the justification of the rules of the burden of argumentation. Their rational justification is a precondition for rational juristic discourse. (shrink)

This paper aims to inquire whether an analysis of the concept of law is an exercise of analysis in its modest or immodest form. Our inquiry suggests that the Jacksonian distinction between modest and immodest conceptual analysis, so eagerly applied by many legal scholars, is inapplicable to analyzing a specific part of the concept of law. The crux of our argument lies in the relation between the folk theory of law and the content of the developed concept of law. As (...) an artifact concept, the concept of law must depend on the pre-existing content of the folk conception of law (which we term the ‘foundational folk theory’). This part of folk theory determines the collective intentionality necessary to bring an institutional artifact, such as law, into existence. A large part of the argument for this conclusion depends on the acceptance of a realist and functional, post-Searlean theory of artifactual types. (shrink)

In this paper, we discuss the problem of the relationship between legal concepts and legal norms. We argue that one of the widespread theories of legal concepts, which we call ‘the embedding theory’, is false. The theory is based on the assumption that legal norms are central for any legal system and that each legal norm establishes an inferential link between a certain class of facts and a certain class of legal consequences. Alf Ross’s embedding theory was presented in his (...) famous paper “Tu–Tu”. According to Ross, the sole function of legal concepts is to simplify normative information. Hence, the use of legal concepts may be a matter of convenience, rather than necessity. We criticize this approach mainly by pointing to the existence of so-called second order substantive concepts, which are not reducible to any determined set of conditional sentences (inferential links). In short, second order substantive concepts play the role of general standards, and general standards are used to provide flexibility for a particular legal system. In addition, general standards are ‘value loaded’, since they serve as a frame of reference for judges applying law to particular cases. To understand such general standards as a predefined set of conditionals means to overlook their ‘open’ content, and thus their function. In our opinion, the acceptance of the embedding theory means to misinterpret the function of general standards. We also argue that Giovani Sartor’s idea of defective legal concepts doesn’t help to clarify or defend the embedding theory. (shrink)

The article contains a critical analysis of two conceptions of “the nature of things”, as found in publications of West German philosophers of law: G. Radbruch and W. Maihoffer. In the first stage of the evolution of his thought Radbruch spoke of the “influence of the matter on the legal idea”. The function of “the nature of things” is identified by Radbruch with resistance by social reality to the implantation of the legal idea. In the next stage of his views (...) Radbruch conceives of the nature of things as an objective sense of a certain social relationship, perceived from the point of view of a certain value. Now the nature of things serves as a bridge between the real world and the world of values. The nature of things has a minor role according to Radbruch, in legal thought. He emphatically opposes recognizing it as a source of law. (shrink)

Volume 10, Issue 4, December 2019, Page 582-587.